Sabani v Simiyu
The bottom line
#A Bungoma court ruled that a landowner who occupied a plot for over 12 years legally owns it, even though someone else holds the title deed.
What this practically means
#Executive summary
#Key legal issues
#Probative value of recanted witness statements
The testimony of PW2 and PW3 was completely disregarded as unreliable after they recanted their February 12, 2021 statements, with PW2 admitting she was coached to lie
Both witnesses recorded two contradictory statements - one supporting the Defendant and one supporting the Plaintiff. PW2 admitted being coached by her mother to lie; PW3 first denied then admitted recording the earlier statement. Applying the test in Ndungu Kimanyi v R, the court held such witnesses are untrustworthy and their evidence of no probative value.
Whether the Defendant acquired 50 x 100 feet by adverse possession
Yes - the Defendant's occupation since 1978 exceeded 12 years, extinguishing the Plaintiff's title to that portion
The Defendant purchased and took possession of the demarcated portion in 1978, occupied through his agent Elizabeth Situma, peacefully, openly and without interruption. Even computing time from first registration in 1988, the title was extinguished by 2000, before the Plaintiff acquired title in 2009 and before the suits were filed in 2013.
Whether the registered proprietor is entitled to an injunction
No - the Plaintiff's title to the claimed portion was subject to overriding prescriptive rights under sections 25, 26 and 28(h) of the Land Registration Act and section 30(f) of the repealed Registered Land Act
While registration confers absolute proprietorship, that title is subject to rights acquired under limitation laws. The Defendant's prescriptive right had crystallized long before the Plaintiff's registration in 2009, so the injunction could not issue in respect of the occupied portion.
Legal principles established
#- A witness who makes contradictory statements or admits being coached is unreliable and their testimony must be disregarded
- Prescription affects not only present holders of title but their predecessors as well; change of ownership does not interrupt adverse possession
- A claimant need not be personally in occupation; occupation through an agent suffices for adverse possession
Court orders
#- 1.The Plaintiff's claim is dismissed
- 2.Declaration that the Defendant has acquired by adverse possession a portion of land parcel No East Bukusu/North Kanduyi/1557 measuring 50 x 100 feet
- 3.The Plaintiff shall within 30 days deliver the original title deed for the suit land to the Land Registrar Bungoma for cancellation and for the County Surveyor Bungoma to demarcate the 50 x 100 feet portion for issuance of a title deed to the Defendant
- 4.The Plaintiff shall within 30 days execute any documents to facilitate transfer of that portion to the Defendant
- 5.In default, the Deputy Registrar of the Court shall execute such documents on behalf of the Plaintiff
- 6.The Plaintiff shall meet the costs of the dismissed suit and the Defendant's counter-claim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to land; adverse possession claim under section 38(1) of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sabani v Simiyu", Case Analysis (2023). Environment & Land Case 146 of 2013 & Civil Case 3 of 2013 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16469/eng@2023-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.